Response to Kmiec (and Levinson) -- What Does it Mean to "Faithfully" Execute the Law?

Marty Lederman

I'd like to thank Doug Kmiec for his very gracious response. As one might imagine, I still have significant disagreements with some of what Doug writes; but I also think that Doug's latest post, because it is more temperate and discriminating than his Washington Post Op/Ed, helpfully narrows and focuses our areas of significant disagreement. (For example: If all Doug meant by describing Comey's testimony as "histrionic" was that it was "vivid," I fully concur in the sentiment, if not in the choice of adjective.)

It's probably best to allow others to weigh in where some of our differences are obvious. I'll limit myself here to three issues.

First, was the hospital visit necessarily so nefarious?

Doug remains "mystified" by what he himself dubs an "'ethically dubious' attempt to pursue a futile certification from a man recused and critically ill in the hospital." That about says it all -- so perhaps we do not differ so much on the question of how disturbing the hospital episode was.

Doug generously attempts to exonerate Gonzales by surmising that (i) "Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation"; and (ii) "he intended to ascertain whether Mr. Ashcroft concurred and was well enough to rescind his recusal in light of that possible concurrence."

I do not doubt the first point: I think the President and Gonzales probably were motivated to such unusual action by their fear that a cessation of the NSA program would have serious adverse consequences. But this does not distinguish them from Comey, Ashcroft and Goldsmith -- all of whom were very much aware of the serious consequences, and all of whom were, by all accounts, very eager to find a legal basis to allow the program to continue. The fact that they pulled the plug anyway speaks volumes about how extremely dubious the legal case for the program must have been before that hospital visit. (That's the main point of this post.)

As for the second point, I'm afraid Doug is grasping at straws. There's no reason to believe that Gonzales was trying "to ascertain whether Mr. Ashcroft concurred" with Comey's decision. Not, anyway, unless the White House thought that Jim Comey and Jack Goldsmith were outright lying when they reported DOJ's decision. The White House knew damn well what Ashcroft's decision had been. Recall that Comey and Ashcroft had concurred on that decision a week earlier, just before Ashcroft fell ill. ("A week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter. And at the end of that hour-long private session, he and I agreed on a course of action.") On Tuesday, March 9th, the DOJ officials "communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail." In these detailed conversations, Comey undoubtedly told the White House and NSA that Ashcroft had concurred in his judgments. The President nevertheless sent Gonzales and Card to the hospital, without so much as telling the Acting Attorney General, so that they could obtain the signature of someone who was not only incapacitated, but not even acting in an official capacity! Obviously, they did so in order that they could present a fraudulent certification, of someone who was not at the time acting as AG, to the NSA and/or to the telcom companies. (Doug hints that perhaps they also were endeavoring to ascertain if Ashcroft was "was well enough to rescind his recusal" -- i.e., to retract his delegation of the AG's powers to Comey. With all respect, this seems implausible, or worse. Mrs. Ashcroft apparently told the White House that he was not even well enough to receive visitors -- and the White House officials went to the hospital without even informing the Acting Attorney General that they were doing so. And you wonder why Comey was shocked?)

Second -- is it worse than Watergate?

Doug writes: "Overall, the purpose of my commentary was largely to raise a caution about the undifferentiated likening of a dispute over the extent of the president's war powers to distortions of the rule of law we know as Watergate. To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior."

I agree that the mere disagreement about the scope of the AUMF or Article II was in no respect as "venal" or as "corrupt" as the entire Watergate affair. As I carefully explained in my post about Doug's Op-Ed, the analogies to the Saturday Night Massacre were not intended to suggest that the underlying crime was as "venal" as, or analogous to, the Watergate break-in. It was merely to note, as I did, that in both cases "the President and his closest aides had so egregiously departed from institutional legal norms that the entire top echelon of the Justice Department was prepared to resign in a manner that would signal to the public that something was greviously awry within the Administration. . . . Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales."

But let's not minimize the underlying offenses: No, they were not attempts to engage in third-rate burglaries, or to manipulate the Department of Justice, in order to influence the outcome of an election or to cover up such wrongdoing. (The U.S. Attorney and voter-fraud-fraud scandals are much closer to the mark on that score.) But the law being violated here -- FISA -- was much more important than the one being violated at the Watergate Hotel, and in some sense the threat to the Constitution is much greater here, too, because, pace the David Frost incident, Nixon did not actually think or argue that the break-in (or most of the cover-up) was legal, whereas the Bush/Cheney/Addington theory of the Constitution would quite forthrightly allow the President to disregard statutes and treaties whenever he thinks they get in the way of how he chooses to prosecute an international conflict. And, as in Watergate, all of this (the electronic surveillance, the torture, etc.) was done in secret, with no opportunity for the other branches or the public to apply the checks and balances that the Constitution contemplates.

Third -- isn't this whole tempest merely a principled disagreement about constitutional interpretation?

Well, yes, in some sense it is -- which is why I've been so invested in the topic for the past three years. The point of my posts in this case, however, was simply to show that the position the President adopted in that debate was profoundly radical, unorthodox, and sweeping -- a view so extreme that it was rejected by strong supporters of the President such as John Ashcroft, Jim Comey and Jack Goldsmith, even with respect to what they all considered a vitally important program that had already been implemented on the basis of that constitutional view for more than two years.

Which brings me to Sandy's question, on the principal point where Doug and I agree (i.e., that the legal decision within the Executive branch was ultimately for the President to make): Isn't there something wrong with a Constitution that allows a President with no special legal understanding to reject the Ashcroft/Goldsmith view in favor of the Cheney/Addington view?

I'll leave it to Sandy and others to debate whether the Constitution is flawed in this respect. I would only note in this regard that if the system were working as it is designed to, where the President's constitutional views are subject to public debate and the ordinary checks and balances of the political and judicial systems -- as in the case of the first U.S. bank, and the Louisiana Purchase, and the steel seizure, and the destroyers sale, and the wars in Korea and Kosovo, etc. -- then even an unlearned, unorthodox and misguided Executive interpretation of the Constitution would not necessarily have the profound implications that Sandy describes. (Which in turn would, of course, make the President much more reticent about adopting radical views in the first place.) The big problem here is not that the President's "last word" within the Executive branch was so unorthodox, but that it was so unorthodox and secret, and thus so unchecked, i.e., that the final word within the Executive branch became, for all intents and purposes, the final, unreviewable policy and practice of the United States, whether it be with respect to surveillance in violation of FISA, or with respect to "enhanced" interrogation techniques. There would not be anything so troubling about permitting a President unlearned in the law to make constitutional interpretations on behalf of the Executive branch if those decisions were subjected to the ordinary checks and balances of politics, litigation, and the referendum of public debate. [UPDATE: It was worse than that, actually. As Glenn Greenwald reminds us, the Administration not only didn't tell Congress and the public that it was disregarding FISA -- the President and AG Gonzales actually went around the nation trumpeting the fact that all wiretaps were done pursuant to court order, and repeatedly went to Congress proposing amendments to FISA without mentioning those features of the statute that they had found it necessary to disregard.]

Apart from the lack of transparency -- the attempt to preclude such checks and balances -- I still have a problem with the President's internal Executive branch decision to choose Addington over Goldsmith; but my concern is different from Sandy's: It's not that the President is incapable of making a constitutional judgment (if he took the question seriously), but instead that the President was asking himself the wrong question. If the President had taken the merits of the constitutional question seriously (as I think he is constitutionally required to do) and solemnly concluded after serious inquiry into what we might call the "usual legal materials and analytic techniques" that Addington had the better of the Article II argument, I think that would be entirely permissible -- and what the Constitution contemplates, notwithstanding the fact that the President is not "learned in the law." The Constitution was designed to be understood and applied not only by elite lawyers, but by ordinary officials, and by the people. The analogy here, as Sandy suggests, is to Washington and the wonderful internal Executive branch debate concerning the first bank.

But I suppose I simply don't believe, as Doug appears to believe, that the President solemnly concluded that the Cheney/Addington view of Article II was the better reading. I mean, come on -- he had John Ashcroft and Jack Goldsmith saying otherwise. Those are the learned legal experts who the President himself had appointed to provide advice on such questions. The President knew that their analysis was very deliberate and thoughtful; that they deeply feared and regretted the advice they were giving; that they had bent over backwards to see whether there was any basis for the Cheney view; and that they were hardly radical civil libertarians or skeptics of executive power. Undoubtedly, those trusted advisers informed the President of what everyone who has seen the Cheney view has said the moment that they encounter it -- that it is a highly, highly, unorthodox view, embraced by almost no one else, and almost certain to be rejected if it were ever subject to judicial review.

And yet the President opted for it anyway. I am confident he did so not because he was persuaded on the merits after a careful consideration of the competing arguments, nor even because he concluded that David Addington understood the Constitution better than Jack Goldsmith and everyone else in the Justice Department. He opted for the Cheney view simply because it was a view that someone close to him concluded was within the broad range of "reasonable" legal views (after all, the Yoo OLC had signed off on it earlier). That alone was good enough for him. Orin Kerr writes that "there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty." But he knew that his conduct violated FISA. And he knew that the overwhelmingly predominant view -- one adopted by even John Ashcroft and Jack Goldsmith -- was that he had no constitutional prerogative to do so. Now, for most lawyers, that in and of itself would mean a strong presumption that, as Brian Tamanaha writes, the Addington legal justification, "while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility." But for the President, the fact that Dick Cheney and David Addington and John Yoo had signed off on this theory a fortiori brought it within the "pale of plausibility" -- and that was sufficient.

In my view, this suggests that President Bush did not take seriously his obligation to take care that the law is faithfully executed.

As I've explained before, there is substantial evidence that this President does not see his constitutional role as trying to adduce the "best" view of the law (however one believes that that should be determined). Instead, his constitutional understanding is that he should do whatever he thinks is best for the security of the nation if any legal justification can be articulated for it, as long as that justification is somewhere within a very wide range of what is deemed legally "reasonable." According to Newsweek: "The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it." On this view, if David Addington's view of the Commander-in-Chief Clause was unorthodox, so be it. It sufficed that someone smart, and in the President's circle -- indeed, his running mate! -- believed it. That's all the Constitution requires.

To me, this is the important issue at the heart of Sandy's inquiry: The problem is not that the President is the final decisionmaker within the Executive branch, but that he has adopted this highly contestable notion of what it means to take care that the law is executed faithfully -- and has done so in a manner that virtually guarantees that his decisions are unreviewable, uncheckable. I would be interested to know what Doug and other defenders of the Administration think about the issues that I raise in this post. For OLC and other Executive branch constitutional actors -- including Presidents --- going forward, I think these are the most important questions arising from this unfortunate episode.

I am a defender of executive power. No one who has headed the office of legal counsel, designed to preserve the office of the presidency, could be otherwise. But defending the constitutional parameters of presidential power is fundamentally different from defending assertions of power inclined toward excess or abuse. . . .

The duty of the president is to faithfully execute, not invent, the law. Yes, the extent of executive power can be debated, and yes, some political scientists complacently claim that all modern presidents have pressed or exceeded the boundaries of Article II authority. Yet those sworn to "taking care" of the execution of the law must be held to a high standard.

Doug wrote these words as a prelude to a sharply worded critique of President Clinton's reading of the law in some of his Executive orders. Surely, if Doug believes such strong criticisms were apt in the case of some Clinton Executive orders that were of relatively modest import -- and that were publicly promulgated and defended -- then perhaps he and others who were so quick to criticize the alleged constitutional deficiencies of the Clinton Administration (see, e.g., Ted Olson's chapter in the same volume) might apply just a bit of that same scrutiny to the much more profound constitutional crises that we now face. Where's that "high standard" now that we really need it?

Since Kmiec continues to cast this a principled disagreement over what he sees as a constitutional problem with FISA, I continue to call BS. The right way to resolve such disagreements is in court, which is precisely what Bush has avoided doing lo these many months!

Contrast Dellinger's advice -- firmly centered in a presidential duty to facilitate, even anticipate judicial review in such situations -- with Bush's behavior. Not only has the President not facilitated judicial review of the constitutional merits, he continues to hide from it like a fugitive while apologists such as Kmiec raise a smokescreen.

I would only note in this regard that if the system were working as it is designed to, where the President's radical constitutional views are subject to public debate and the ordinary checks and balances of the political and judicial systems -- as in the case of the first U.S. bank, and the Louisiana Purchase, and the steel seizure, and the destroyers sale, and the wars in Korea and Kosovo, etc. -- then even an unlearned, unorthodox and misguided Executive interpretation of the Constitution would not necessarily have the profound implications that Sandy describes. (Which in turn would, of course, make the President much more reticent about adopting such radical views in the first place.)

All the checks and balances reasonable for a secret intelligence gathering program have been in place.

The Congressional leadership of both parties in both houses of Congress and both intelligence committees were informed and briefed on this program from the beginning. After the NYT disclosed the parameters of the program to the enemy, all of the intelligence committee members were briefed and observed the program in action and the opposition party has now taken over majorities in both committees. However, neither committee is demanding that the TSP be ended or substantially modified because it is "illegal" nor have any bills to impeach the President been issued out of those committees.

I simply don't believe, as Doug appears to believe, that the President solemnly concluded that the Cheney/Addington view of Article II was the better reading. I mean, come on -- he had John Ashcroft and Jack Goldsmith saying otherwise.

Is it not correct that you believe that Congress has the Article I power to enact FISA, that FISA applies to the TSP, that the President's Article II power does not trump FISA, the AUMF did not waive FISA, and, therefore, the TSP's warrantless electronic surveillance is criminal?

If so, how do you conclude that Justice ever agreed with your position or this was the disagreement during the Ashcroft/Comey confrontation with the White House?

Justice signed off on the program several times before this confrontation without requiring the TSP to go to the FISC.

After a two week delay, Justice continued to sign off on the program without requiring the TSP to go to the FISC.

The NYT's original story on this program noted that Justice refined a pre-existing probable cause checklist along the way but there is no evidence reported anywhere that the nature of the TSP was changed. A refined probable cause checklist is probably what Justice obtained in this confrontation.

You still believe that the TSP is illegal while Justice is signing off on the TSP's legality.

After the TSP was disclosed by the NYT, Justice issued a white paper and several briefs in court (with which you disagreed) advancing the President's view of the Constitution and FISA.

Very strange behavior for an agency who you claim was ready to resign en masse because they believed the TSP exceeded the President's Article II authority.

The right way to resolve such disagreements is in court, which is precisely what Bush has avoided doing lo these many months!

No discussion of this matter would be complete without reviewing Walter Dellinger's excellent opinion -- still on the books at OLC -- on what presidents ought to do if they believe a law to be unconstitutional: PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES.

Contrast Dellinger's advice -- firmly centered in a presidential duty to facilitate, even anticipate judicial review in such situations -- with Bush's behavior.

Exactly where does Mr. Dellinger support your argument? Here is the portion of Mr. Dellinger's advice which applies to the TSP"

6. The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment. If the President does not challenge such provisions (i.e., by refusing to execute them), there often will be no occasion for judicial consideration of their constitutionality; a policy of consistent Presidential enforcement of statutes limiting his power thus would deny the Supreme Court the opportunity to review the limitations and thereby would allow for unconstitutional restrictions on the President's authority.

The very words you quote from Dellinger's opinion show that he advised that sometimes violating a statute could be be only way to seek judicial review by the Supreme Court. Which Bush has not done.

The rest of Dellinger's OLC opinion similarly emphasizes the importance of judicial review in such disputes, even advising the president to enforce a law he believes to be unconstitutional if he expects the Supreme Court would not agree with him eventually.

Rather than quote further from the opinion, to which I linked above, I invite everyone to read the whole thing for themselves.

If the constitutional issue Kmiec raises about FISA were presented to the current court in a way it could not be ducked, I am confident it would be rejected 8-1 or 9-0.

Bush's lawyers can also count to nine, which is precisely why they cower from judicial review of this matter, and will not even brief that question forthrightly in current appeals -- remember, a federal court has found the TSP to be illegal. To do so would tee up the question for Supreme Court review, which Bush seeks to avoid at all costs.

I base my uncertainty about Thomas partly on the way the votes broke down 8-1 on the separation-of-powers question decided in Hamdi in 2004. (The handwriting has been on the wall against John Yoo's radical Article II theories ever since.)

On that question in Hamdi, the administration's assertion of exclusive war powers was soundly defeated, with Thomas the only dissenter. But the question centered immediately on Bush's attempt to exclude the judiciary, and Thomas' dissent said it was a matter for the political branches (plural).

Additionally, even in his Hamdan dissent, he completely embraced the Youngstown framework of analysis, which I think is a roadmap for rejection of the general theory advanced by Yoo (and now Kmiec) with respect to FISA.

I am quite sure Thomas badly wants to side with the administration, and I think he and other conservatives would be sympathetic to ducking the matter on the threshold issue of standing, etc. He also would probably bend over backwards to buy the expansive statutory interpretation of the AUMF espoused by Bush, which would keep the matter out of Category 3 under Youngstown, as he and other conservatives did in Hamdan.

But those are separate issues from the Article II matter Kmiec raises. That is why I qualify my prediction to a situation where that question is presented squarely and could not be ducked.

Even so, I am never sure about Thomas, which is why I say 8-1 or 9-0.

In any event, as far as Kmiec's posturing about the constitutional issue is concerned, it makes little difference. There is no way there are even five votes for the proposition that FISA is unconstitutional, and everybody knows it.

No, as I've speculated in threads below, there are other possible scenarios. Card and Gonzales didn't believe Comey had Ashcroft's blessing, so they wanted to make sure. Nonetheless, Kmiec admits it was "seemingly nefarious" and does conclude "there was no justification for the 'hospital visit.'"

Second -- is it worse than Watergate?

When Bush resigns, then we'll have "worse than Watergate."

Third -- isn't this whole tempest merely a principled disagreement about constitutional interpretation?

I tend to agree with Professor Lederman's posts more than Dean Kmiec's posts, but after watching a National Geographic series on 9/11, it reminded me of the full horrors of that event, of the people seeking to attack us, and of the difficult choices that President Bush has had to make in confronting that challenge. I would not impeach Bush over this program, even if it turns out he knowingly violated FISA and the federal wiretap statute, so long as his actions were designed to stop future terrorist attacks, and were not done for any partisan advantage.

To me, that is the big difference between Bush and Nixon: Bush's greatest alleged sins were done for policy reasons, not to punish and destroy his domestic political enemies.

Charles writes: When Bush resigns, then we'll have "worse than Watergate."

That may be true in terms of consequences for the Republican Party, but if the worst charges against the Bush Administration are true, and he does not resign, then it's certainly not true in terms of consequences for our nation. The redeeming feature of the Watergate scandal is that it was exposed and led to reforms that made our democracy stronger. This Administration seeks to undo those reforms and to assert Executive authority as it was envisioned by Richard Nixon. Success in that endeavor would change our nation in ways far worse than Watergate did.

Actually, if the worst charges against the Bush Administration (that the President attacked the WTC) are true, he is a war criminal and should have been impeached and executed. But, don't believe everything Rosie O'Donnell says (she thought fire couldn't melt steel ; )

Off topic: did anyone else pre-order the Reagan Diary book coming out Tuesday? Only one of four Presidents to keep a consistent daily diary -- historical really. The editor was on Meet the Press yesterday with Ed Meese and Mike Deaver (I guess James Baker was too busy).

Didn't anyone notice the context of Kmiec original op-ed? If you recall, there was a bit of a kerfuffle over the proper interpretation of "they" in the last paragraph. Doug's statement was that he wrote it late at night, which is fair enough.

But that brings up the question, who was on fire? Doug didn't have enough time to properly edit his op-ed piece. It went straight to WP, who used to hire editors that would catch something like that. Now, the WP was in such a hurry to get it into print that either they didn't edit it, or decided to go ahead and print it since they couldn't get in touch with Doug in time.

This verges on journalistic malpractice. An op-ed, under normal conditions, can be delayed by a day, or a week - they're op-ed's not breaking stories. Under normal circumstances, editors catch ambiguous statements recognizable as poor writing by freshmen journalism students. Under normal circumstances, that would suggest a delay.

So again, why would the editors at the WP decide to go ahead with a piece that clearly needed a bit of editing to be ready for prime-time? Why would someone publish a piece that was done late at night, without being passed over by some fresh eyes? Why would Doug put his name on something to be publicly published that he hadn't had a day to look at?

I mean, an op-ed in the WP is not the same thing as a comment in a blog! One is usually careful about such things - they tend to affect one's reputation! Academics, lawyers and editors are traditionally anal about such matters.

LOL -- the "context" was that the Post needed an Op Ed to balance out the one published side-by-side with Kmiec's that next day -- maybe they only contacted Doug an hour prior to the print deadline. Again, nothing necessarily so nefarious, but those explanations won't satisfy blood lust, will it? Seems maybe that Professor Kmiec should have left well enough alone.

That being said, several of us (QuiteAlarmed and I, at the very least, in case that plural pronoun throws you as well) did not have a problem with the allegedly-vague "they" either.

RandomSequence: out of curiosity, which did you read first (Douglas Kmiec's Op-Ed or Mary Lederman's Post about it)? I ask because, as you know, I didn't find the writing nearly as confusing as you did. I wonder if that had to do with the sequence.

Bart: Justice signed off on the program several times before this confrontation without requiring the TSP to go to the FISC. After a two week delay, Justice continued to sign off on the program without requiring the TSP to go to the FISC.

According to Gonzales, the confrontion with Comey in 2004 involved "operational capabilities" outside the scope of what was announced/disclosed as the TSP later, in December 2005.

This is an interesting statement given that the TSP as described by the NYT from 2004 sources is substantially the same as the TSP disclosed by Justice in reaction to that story. However, the TSP may have had additional capabilities which have not been disclosed by the NYT or Justice which may have been the subject of this confrontation.

Let us assume for the sake of this discussion that Gonzales is saying that the confrontation had to do with additional undisclosed capabilities of the TSP.

In that case, the confrontation had very little to do with the TSP as we know it and cannot be said to support or refute any of the arguments we have been making concerning the legality of the TSP.

The very words you quote from Dellinger's opinion show that he advised that sometimes violating a statute could be be only way to seek judicial review by the Supreme Court. Which Bush has not done...Rather than quote further from the opinion, to which I linked above, I invite everyone to read the whole thing for themselves.

I agree. As to JAO's suggestion that the President seek an unconstitutional advisory opinion from the Supreme Court, I would direct readers to the second paragraph of Dellinger's 6th recommendation which I partially quoted above:

Some legislative encroachments on executive authority, however, will not be justiciable or are for other reasons unlikely to be resolved in court. If resolution in the courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President's authority as Commander in Chief. Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.

This is exactly the type of largely non-justiciable case to which Dellinger referred for the reasons I give below.

If the constitutional issue Kmiec raises about FISA were presented to the current court in a way it could not be ducked, I am confident it would be rejected 8-1 or 9-0... remember, a federal court has found the TSP to be illegal.

Judge Brown's widely criticized opinion is unlikely to survive appeal to the Circuit Court nevertheless be affirmed by the Supremes in an 8-1 or 9-0 decision. The idea that Scalia, Thomas, Roberts or Alito are dependable votes for your position is silly.

In any case, the entire question appears to be moot since the FISC has reportedly gutted the probable cause requirements of FISA and is now issuing rolling warrants which cover most or all of the program. With FISC signing off on the program without any complaint from Congress and no actual harmed parties to bring suit, the Supremes are unlikely to even grant cert.

Please address how Bush would be seeking an advisory opinion in light of the actual case and controversy in front of Judge Brown? Moreover, this is not the only case to be brought regarding this program. So again, how would this be an advisory opinion?

Please also address JaO's point, related to the above, that there have been ample opportunities for the Bush Administration to raise the Art. II argument on the merits, yet they have not done so.

Finally, how is this dispute "non-justiciable"? We have a direct conflict between an executive policy and the 4th Amendment. Such a conflict is imminently justiciable. Some might call it the precise reason we have the courts.

Mike: My guess is that Bart will answer that the dispute cannot be heard in court because of national security concerns. Everything bootstraps in nicely if you are willing to trust the Bush Administration.

Please address how Bush would be seeking an advisory opinion in light of the actual case and controversy in front of Judge Brown?

One has nothing to do with the other. jao has suggested in past posts that Mr. Bush could have submitted this question at the outset on appeal from the FISC.

Please also address JaO's point, related to the above, that there have been ample opportunities for the Bush Administration to raise the Art. II argument on the merits, yet they have not done so.

Justice uses FISA continuously to gain secret warrants in national security cases and does not want an overzealous court to find FISA unconstitutional. Folks like the ACLU have been attacking the FISA warrant process as a violation of the 4th Amendment for years and they have a very arguable case IMHO.

Therefore, Justice has been pursuing a constitutional avoidance strategy, arguing that courts should find that the AUMF waived the application of FISA, or now that the new FISC blanket warrant program has mooted the issue, so the courts do not have to consider the constitutionality of FISA. However, Justice has made the constitutional argument on more than one occasion.

Finally, how is this dispute "non-justiciable"? We have a direct conflict between an executive policy and the 4th Amendment.

In the Truong line of cases to which I have earlier cited held that the 4th Amendment does not require warrants for electronic surveillance of agents of foreign groups for intelligence gathering and not criminal evidence purposes. Consequently, plaintiffs have not been raising your 4th Amendment argument in court.

The only requirement for warrants under these circumstances is FISA and Congress had no power under Article I or the 4th Amendment to enact FISA for this purpose.

There is really no question about the constitutionality of FISA being justiciable. Cases such as Youngstown, Hamdi and Hamdan -- all of which decided separation-of-powers questions related to war powers -- don't come up frequently, but the court is quite able to resolve them if they do.

The problem is getting a test case of the merits in the first place, a scenario from which this administration hides.

As you well know, there have been several such opportunities:

1) All along, DOJ could have presented a purely domestic FISA warrant application based on the fruits of prior warrantless surveillance. But we know from reporting in the Washington Post, DOJ avoided creating such a test case after the chief judges of the FISA court warned that it likely would end up being overturned.

2) In the civil cases such as the one the government has already lost in district court, ACLU v NSA, the government could brief the merits of the constitutional argument that Kmiec suggests is so compelling. But DOJ even defied the judge's instructions to do so. On appeal, the government continues to avoid these merits issues, relying completely on a rope-a-dope defense based on standing and privilege.

3) If DOJ sought good-faith review of this constitutional principle, as Dellinger suggests, it could actual cooperate with potential third-party plaintffs to seek a proper test case. Stipulations can be made, and privileges waived, when parties genuinely seek resolution of underlying merits issues.

4) To this day Bush and Gonzales -- who are obviously conflicted -- refuse to take the honorable course of appointing a special counsel. Such a counsel could explore what no one else can: the question of who, if anyone, is liable under FISA's criminal-sanctions provisions. Bush even killed a preliminary internal investigation by the department's Office of Professional Responsibility, which could have recommended a special counsel, by the laughable expedient of denying security clearances to OPR staff attorneys.

To argue that there is no legal scenario that would test the constitutional issue is disingenous in the extreme. Bush has adopted the legal strategy of a fugitive -- except he is a fugitive who happens to control the nation's law-enforcement machinery.

LOL, Both op-eds could have waited a day. LOL, there is never a need for an emergency op-ed. LOL, why would the WP feel the need to give someone only one hour to come up with an op-ed. LOL, we already have plenty of examples of Charles' reading comprehension being sub-par. LOL, the fact that some commenters assume the same reading as the author, in no way implies that the sentence was well-written, particularly since even academic lawyers misunderstood that phrase. LOL, a professional editor should immediately recognize an imprecise or ambiguous paragraph.

QA: I don't receive the WP, so I read Marty's post first, then linked through. But that is beside the point - even if the most common naive reading is yours, that doesn't imply that the paragraph was well written. I've worked with professional editors - they are sticklers for exactly those kinds of details. Even if 99% of people read the paragraph one way, a professional editor will narrow like a laser on that 1% misreading.

That's why I went on about it. I am "mystified" by the fact that both Doug, a lawyer, and the WP op-ed editor would have missed that. We can assume that Doug was asked for a quick op-ed and kicked it out - the question for him is why he felt the need to kick it out in an hour. Why not ask WP to delay posting the op-eds until he had a reasonable time frame to compose his statement?

Then we have to follow with the question of why did the WP feel such an urgency to have an Op-Ed. No matter the answer, it is surely a sign of declining journalistic standards.

I fail to see why Kmiec dismisses out of hand the notion that the Bush Whitehouse was intent on committing *exactly* the kind of infractions that made WAtergate...what's that word again?...illegal.

There is every indication and no counter proof offered that the Bush Whitehouse was, in fact, using their expanded wiretapping abilities to spy on their domestic political enemies, ie the democrats in their role as democrats in order to pursue a purely domestic political agenda of permanent one party rule.

Given everything that has come out about the DOJ purge, the false allegations of voter fraud, the destruction of the very culture of a non-partisan rule of law at the DOJ I fail to see how any ordinary person can not regard Kmiec's argument that anything the Bush whitehouse did was a good faith interpretation of the laws for non partisan purposes.

Its not the way they do business over there, and at this point anyone who says it is is either not paying attention, or thinks we aren't.

Again, LOL -- there are many more options than (a) Marty is not an academic lawyer, (b) Marty didn't understand that paragraph, or (c) I am an unemployed "idjit" simply muttering incoherently -- here's just one: Marty knew exactly who "they" but couldn't pass up the opportunity to feign shock and awe for the sake of that headline.

"Please address how Bush would be seeking an advisory opinion in light of the actual case and controversy in front of Judge Brown?

One has nothing to do with the other. jao has suggested in past posts that Mr. Bush could have submitted this question at the outset on appeal from the FISC."

Come again? Litigation filed alleging the program is unconstitutional takes the dispute outside of the realm of advisory opinion. Whether JaO, at one point, may have suggested a scenario leading to an advisory opinion (a point I am not conceding), is wholly irrelevant. The fact is that a vehicle exists, right now, for them to resolve the issue once and for all. So how would this be an advisory opinion?

[Bart]: Justice signed off on the program several times before this confrontation without requiring the TSP to go to the FISC.

[Bart]: After a two week delay, Justice continued to sign off on the program without requiring the TSP to go to the FISC.

Let's not misstate the facts.

According to Gonzales, the confrontion with Comey in 2004 involved "operational capabilities" outside the scope of what was announced/disclosed as the TSP later, in December 2005.

Whatever those operations were, they apparently were stopped in early 2004 to prevent the resignations of Ashcroft, Comey, Mueller and others.

Another thing that the Dubya sycophant Wurlitzer ignores is that Comey (and Goldsmith) was the first to take a detailed look into the program as it was, and basically the "first impression" the OLC had was that there was a big problem with the program.

As for the nature of the changes that were made, all is speculation absent someone coming out and saying what the changes were and why these changes mollified the dissenters at DoJ. It's not reasonable to assume that any changes were minimal, both because this wouldn't/shouldn't have changed the opinion of the folks at OLC, and also because of Gonzales's claim (under oath) that there was no significant disagreement with 'the programs we're talking about'.

Let's stop the speculation, and find out the facts. Get these people under oath to tell the truth about what was being done.

Oh, thank you, Charles. I didn't want to accuse you of arguing in bad faith - but you've accused yourself.

So, Marty is a liar, eh? He didn't think there were multiple interpretations of the paragraph (as Kmiec agree, but said that it was due to the timing), but he's a bald-face liar, willing to say anything to make his argument better?

And I'm sure all the other posters here are liars also. Really, Charles, nice way to exclude yourself from the conversation.

Aimai: I fail to see why Kmiec dismisses out of hand the notion that the Bush Whitehouse was intent on committing *exactly* the kind of infractions that made WAtergate...what's that word again?...illegal.

As to JAO's suggestion that the President seek an unconstitutional advisory opinion from the Supreme Court,....

Ja has not suggested that the preznit "seek an unconstitutional advisory opinion".

Just to be clear. Nor did Dellinger suggest such. In fact, the argument of Dellinger which JaO links to says that one reason for refusing to enforce a law is to provide an "actual case or controversy" so that in fact the courts may in fact rule (particlarly since, in particular for laws circumscribing executive action, the only parties with standing to complain about the law may be the executive).

But that gets us back to JaO's point: Once having 'violated' the law so as to be able to bring a case, then it is the duty of the executive to look to the courts to resolve the controversy, rather that continuing to violate the law and ducking any court cases that do arise with procedural blocks or "privilege" claims.

Judge Brown's widely criticized opinion is unlikely to survive appeal to the Circuit Court nevertheless be affirmed by the Supremes in an 8-1 or 9-0 decision. The idea that Scalia, Thomas, Roberts or Alito are dependable votes for your position is silly.

That this ended up in court despite the efforts of the maladministration to avoid review shows that this issue is not one of the non-justiciable ones, depsite "Bart" claims to the contrary.

But the maldministration, as JaO has pointed out, has not argued in court the unconstitutionality of the FISA laws, but rather, as JaO has also been pointing out (but "Bart" keeps ignoring), keeps ducking the issue by raising standing issues, and by invoking "state secrets" privilege to avoid anyone getting standing. The maladministration is afraid of any actual decision on the merits, and is afraid to brief the merits, in part I suspect, because if they were to brief the merits, the courts would look at the merits and decide against them.

There is really no question about the constitutionality of FISA being justiciable.

There really isn't much question about FISA being constitutional. "Bart"'s favourite dictum cite, In re: Sealed Case, held that it was (albeit against a Fourth Amendment challenge). If FISA had been unconstitutional, the analysis in In re: Sealed Case wouldn't have bothered looking at the FISA provisions in determining whether the Fourth Amendment was violated there.

There is every indication and no counter proof offered that the Bush Whitehouse was, in fact, using their expanded wiretapping abilities to spy on their domestic political enemies, ie the democrats in their role as democrats in order to pursue a purely domestic political agenda of permanent one party rule.

Someone needs to ask what snoops that John Bolton had asked for, and if they were done.

Bart: The idea that Scalia, Thomas, Roberts or Alito are dependable votes for your position is silly.

1) I read and agreed with Scalia's dissent (with Stevens) roasting the notion of supreme executive war powers in Hamdi.

2) I strongly supported the nominations of Roberts and Alito, in whose hearings they endorsed the Youngstown framework (the latter specifically saying he would use it to analyze the FISA controversy). And this framework is a roadmap to reject the theory that Article II trumps FISA. John Yoo, by contrast, dismisses Youngstown.

3) As I said above, I think Thomas is a closer call. But he, too, says he believes in the Youngstown framework of war powers shared by both political branches.

There is nothing "conservative" about the notion of presidents breaking the law with impunity. That is why it saddens me to see someone such as Kmiec -- with whom I often agree -- playing this role.

There is really no question about the constitutionality of FISA being justiciable. Cases such as Youngstown, Hamdi and Hamdan -- all of which decided separation-of-powers questions related to war powers -- don't come up frequently, but the court is quite able to resolve them if they do.

This is not a question of whether the Court has the ability to resolve the questions raised by the TSP, but rather whether there is a vehicle to bring the case to the court.

Youngstown, Hamdan and Hamdi all had parties which suffered harm in fact. The TSP is a secret program with no known parties who can prove they were surveilled except perhaps for an Islamic "charity" which was shut down as an al Qaeda financial front.

1) All along, DOJ could have presented a purely domestic FISA warrant application based on the fruits of prior warrantless surveillance. But we know from reporting in the Washington Post, DOJ avoided creating such a test case after the chief judges of the FISA court warned that it likely would end up being overturned.

As I posted before, the question we want answered is whether Congress has the power under Article I to direct foreign intelligence gathering through FISA. If Justice requests a FISA warrant, they are admitting that Congress has such power. You cannot request a FISA warrant and then argue to the FISC that it has no power to issue one. You would be laughed out of court. Once again, this is a transparent ploy for an unconstitutional advisory opinion.

2) In the civil cases such as the one the government has already lost in district court, ACLU v NSA, the government could brief the merits of the constitutional argument that Kmiec suggests is so compelling. But DOJ even defied the judge's instructions to do so. On appeal, the government continues to avoid these merits issues, relying completely on a rope-a-dope defense based on standing and privilege.

Justice never reached the merits in this case because the case was two steps short of that point.

First, the court needed to decide standing and then probably permit an interlocutory appeal on that issue because of how weak that argument was. (This is where the instant case was when Judge Brown short circuited the process and issued an outlaw SJ without an evidentiary record.)

If the trial court created standing and was upheld in that effort, then the parties would have needed to start with discovery. When the plaintiffs requested classified materials, Justice would file motions to dismiss based on the state secrets privilege. (This is where the other cases are right now.)

If the Court had created standing and allowed discovery creating a factual record, then and only then should Justice reach the merits. Addressing the merits two steps early concedes that the plaintiffs are likely to prevail on the standing and state secret privilege issues. No other court attempted to pull the outlaw end around which Judge Brown attempted.

3) If DOJ sought good-faith review of this constitutional principle, as Dellinger suggests, it could actual cooperate with potential third-party plaintffs to seek a proper test case. Stipulations can be made, and privileges waived, when parties genuinely seek resolution of underlying merits issues.

Dellinger never recommended that his client waive all of its legal defenses. No competent attorney would recommend that the ACLU be allowed to conduct a fishing expedition to expose a top secret program to the enemy in a time of war.

4) To this day Bush and Gonzales -- who are obviously conflicted -- refuse to take the honorable course of appointing a special counsel.

Here, at last, we arrive at a perfect example of the unitary executive theory. In a conflict with Congress over the division of powers, Mr. Bush is not required to appoint a special prosecutor to prosecute himself. Congress is perfectly competent to take action to protect its own interests. They can bring a case in court, withdraw funding for the TSP or impeach the President. The fact is that a majority in Congress supports the TSP and always has.

Bart: The idea that Scalia, Thomas, Roberts or Alito are dependable votes for your position is silly.

1) I read and agreed with Scalia's dissent (with Stevens) roasting the notion of supreme executive war powers in Hamdi.

No one is arguing that the President has "supreme executive war powers" which trump concurrent congressional war powers. Indeed, I have freely admitted that express Article I powers trump the general Article II power. The issue is whether Article I grants Congress a concurrent power to direct foreign intelligence gathering in the first instance.

I do not see the champion of textualism finding an unenumerated Congressional power to hamstring foreign intelligence gathering.

2) I strongly supported the nominations of Roberts and Alito, in whose hearings they endorsed the Youngstown framework (the latter specifically saying he would use it to analyze the FISA controversy). And this framework is a roadmap to reject the theory that Article II trumps FISA. John Yoo, by contrast, dismisses Youngstown.

Youngstown requires a concurrent Congressional power which you cannot offer.

3) As I said above, I think Thomas is a closer call. But he, too, says he believes in the Youngstown framework of war powers shared by both political branches.

Bart: If Justice requests a FISA warrant, they are admitting that Congress has such power.

ROFLMAO. Justice requests thousands of FISA warrants every year.

Bart: If the trial court [in ACLU v NSA] created standing and was upheld in that effort, then the parties would have needed to start with discovery.

ROFLMAO again. The case was decided on summary judgment. No discovery was sought or contemplated, because the court agreed that a prima facia case was made based entirely on unconstested facts -- primarily the public statements of Gonzales et al.

Bart: Here, at last, we arrive at a perfect example of the unitary executive theory. In a conflict with Congress over the division of powers, Mr. Bush is not required to appoint a special prosecutor to prosecute himself.

Here, at last we arrive at the core of the conflict and potential cover-up.

It is not in the first instance a "a conflict with Congress over the division of powers," but rather the violation of a criminal statute.

If a special counsel were to indict someone from the executive branch for violating FISA, that defendant would be free to argue that the criminal law in question is unconstitutional -- indeed the most direct and common venue for challenging a criminal law.

Bart: The issue is whether Article I grants Congress a concurrent power to direct foreign intelligence gathering in the first instance.

In the first place, Congress does not direct intelligence gathering, the directors of intelligence agencies and military officers do. But Congress can make general rules to regulate such operations, and in the first instance it certainly can regulate wiretaps under the Commerce Clause and the Necessary and Proper Clause (which underly both FISA and Title III warrants.)

What is at issue -- under Category 3 of Youngstown, where the executive does something prohibited by Congress -- is whether FISA itself is unconstitutional.

The administration is quite afraid to make that argument in a real court, which is why it does not try.

Bart, I think even you can agree that the "right" way to resolve these disagreements doesn't involve a midnight call on a deathly sick man to get his signature on a piece of paper that can then be used to lie to the telecoms that the president is complying with the law in wantonly wiretapping everything in sight?

would that be a fair statement?

and please elaborate on how suspecting the Acting Attorney General of flat out lying about a conversation he had with Ashcroft is consistent with Bush's notion of bringing honor and integrity back to the WH.

Bart DePalma: I do not see the champion of textualism finding an unenumerated Congressional power to hamstring foreign intelligence gathering.

But where is the President’s enumerated power to gather foreign intelligence? There is none.

By contrast, Congress has the expressly enumerated power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” International wire transmissions are indisputably a channel of foreign commerce (and national wire transmissions indisputably a channel of interstate commerce).

Against this enumerated Congressional power, you have set the President’s unenumerated “war powers.” Your theory of his supreme authority to intercept wire transmissions in the interest of national security is entirely gloss upon his authority as “Commander in Chief of the Army and Navy of the United States” (unless you are arguing that it is derived from a penumbra that includes his power to make treaties and nominate ambassadors).

Once you begin to discuss war powers, though, you run into the additional problem that Congress also has the expressly enumerated war powers, including the power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” In fact, Article I has much more to say about Congress’s authority over war than Article II does about the President’s role as Commander in Chief.

For a strict textualist, the argument clearly falls in favor of upholding FISA. You can’t make your argument without going outside the text for authority.

Bart: If Justice requests a FISA warrant, they are admitting that Congress has such power.

ROFLMAO. Justice requests thousands of FISA warrants every year.

Justice continuously seeks FISA warrants to conduct searches to obtain criminal evidence. That has nothing to do with the issue before us.

Based on what has been disclosed to date, Justice never requested a warrant for TSP intelligence gathering until the FISC recently agreed to issue rotating blanket program wide warrants.

Bart: If the trial court [in ACLU v NSA] created standing and was upheld in that effort, then the parties would have needed to start with discovery.

ROFLMAO again. The case was decided on summary judgment. No discovery was sought or contemplated, because the court agreed that a prima facia case was made based entirely on unconstested facts -- primarily the public statements of Gonzales et al.

Good heavens, it is hard to decide with which of Judge Taylor's errors to start.

The creation of standing did not pass the laugh tests even in these parts.

Coming in a close second in the egregiousness scale is the fact that Judge Taylor granted summary judgment without even the semblance of a factual record concerning the parameters of the TSP. Relying upon the vague public disclosures concerning the parameters of the TSP to award summary judgment is the equivalent of finding medical malpractice based on the disclosed fact that the hospital admitted plaintiff without bothering to inquire into the facts of the actual medical procedure.

Coming in third in the egregiousness scale is Judge Taylor's completely unfounded assumption that the TSP violated FISA without once applying the facts of the program (which she did not have) to the actual statutory language in FISA (which I believe she did not once cite in her ruling).

It is not in the first instance a "a conflict with Congress over the division of powers," but rather the violation of a criminal statute.

When the question is the constitutionality of the statute, that is the threshold issue.

For example, if the Congress made it a felony crime for the President to issue a veto, the President would not be required to appoint a special counsel after he ignored the unconstitutional statute and issued a veto. Rather, the issue would be the constitutionality of the statute.

Bart of course gives an answer lacking in all context and veracity. Does this sound like a poorly reasoned ruling?

Second, the court ruled that the plaintiffs have standing to challenge the legality of the NSA program even though they cannot prove they have been eavesdropped on, because they have suffered actual harm merely from knowing that the Government is eavesdropping. They all allege that they have extensive communications with the Middle East by telephone and fear that the administration is listening in without a warrant. Some are attorneys who fear the administration is eavesdropping on their conversations with their clients and witnesses, and they allege that these clients and witnesses have ceased communicating with them openly as a result.

Thus, the court held that these plaintiffs are suffering actual harm in their ability to carry out their professional duties as a result of the administration's warrantless eavesdropping program. That actual harm confers on them standing to challenge the legality of the program. The court also emphasized, in an excellent section I will quote shortly, that it is vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny. - Glenn Greenwald

While it may indeed be "vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny" that's exactly what the President and Congress can do under the Constitution in order to SAVE AMERICAN LIVES.

There is really no question about the constitutionality of FISA being justiciable. Cases such as Youngstown, Hamdi and Hamdan -- all of which decided separation-of-powers questions related to war powers -- don't come up frequently, but the court is quite able to resolve them if they do.

This is not a question of whether the Court has the ability to resolve the questions raised by the TSP, but rather whether there is a vehicle to bring the case to the court.

Youngstown, Hamdan and Hamdi all had parties which suffered harm in fact. The TSP is a secret program with no known parties who can prove they were surveilled except perhaps for an Islamic "charity" which was shut down as an al Qaeda financial front.

So if "Bart" stumbles on a mass grave of 100 skeletons, he'll say that no one died, because we can't identify the bones as belonging to a specific individual....

It's publicly acknowledged that there are people that have been spied on without warrants. No, let me amend that: The maladministration has bragged about doing so. Yet "Bart" still insists that there are no plausible parties with sufficient interest to bring suit.

Of course, the reason that there are none is that the gummint won't say whether they did in fact spy on anyone specifically, but that hardly changes the actual facts. In fact, court cases are good at teasing out actual facts (you know, through discovery?), so let the games commence.

[JaO]: 1) All along, DOJ could have presented a purely domestic FISA warrant application based on the fruits of prior warrantless surveillance. But we know from reporting in the Washington Post, DOJ avoided creating such a test case after the chief judges of the FISA court warned that it likely would end up being overturned.

As I posted before, the question we want answered is whether Congress has the power under Article I to direct foreign intelligence gathering through FISA....

... or the 20,000 other little laws they tossed into Title 10 of the U.S. Code. All illegal, "Bart"?

... If Justice requests a FISA warrant, they are admitting that Congress has such power. You cannot request a FISA warrant and then argue to the FISC that it has no power to issue one....

This line of ... ummm, 'argument' ... of course contradicts what "Bart" has claimed at other times when he's said that they ask for FISA warrants for criminal investigations. It als contradicts what the maladministration has done, in that it's unarguably sought (and obtained) FISA warrants, just from public information.

... You would be laughed out of court. Once again, this is a transparent ploy for an unconstitutional advisory opinion.

Well, if you're arguing "Bart"'s lonely 'theory'. But as JaO has pointed out many a time, the maladministration has never argued such a theory in court ... albeit for the reasons "Bart" mentions: fear of being laughed out of court.

[JaO]: 2) In the civil cases such as the one the government has already lost in district court, ACLU v NSA, the government could brief the merits of the constitutional argument that Kmiec suggests is so compelling. But DOJ even defied the judge's instructions to do so. On appeal, the government continues to avoid these merits issues, relying completely on a rope-a-dope defense based on standing and privilege.

Justice never reached the merits in this case because the case was two steps short of that point.

IIRC, they were asked to brief the merits. They refused.

First, the court needed to decide standing and then probably permit an interlocutory appeal on that issue because of how weak that argument was....

When they lost that at the district level, and lost on the merits, they should at least address the merits on appeal. To do otherwise is almost malpractise.

... (This is where the instant case was when Judge Brown short circuited the process and issued an outlaw SJ without an evidentiary record.)

You don't need an "evidentiary record" for SJ. We've been through this before:

FRCP Rule 59(c):

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

If you don't contest an "issue of material fact", it is assumed to be as the adverse party stated, and certainly is not a "genuine issue as to [] material fact". In short, absent a dispute of facts as alleged, there is no need for evidence in making the judgement. The gummint chose not to address the allegations. Their mistake.

If the trial court created standing and was upheld in that effort, then the parties would have needed to start with discovery.

I defy "Bart" to show where in the FRCP it requires that standing be addressed and disposed of before discovery (and/or SJ) can take place.

It is true that you can make a claim of lack of standing (or, as was true in Jones v. Clinton, a claim of no "injury" which is a similar bar to relief) in your own SJ motion, and have the outcome determined by that should the judge rule in your favour, but that is not what happened. If your claim of lack of standing fails, you need to be prepaped for what happens next, and that includes responding to the SJ motion (and the allegations) of the adverse party.

... When the plaintiffs requested classified materials, Justice would file motions to dismiss based on the state secrets privilege. (This is where the other cases are right now.)

Not the ACLU v. NSA one.

... If the Court had created standing and allowed discovery creating a factual record, then and only then should Justice reach the merits....

On "Bart"'s theory, then and only then should the issue of standing come up. Because standing can't be adjudicated before then, a court should be loath to rule on that earlier. Unless, of course, you're a JOseph Heller aficionado....

Addressing the merits two steps early concedes that the plaintiffs are likely to prevail on the standing and state secret privilege issues. No other court attempted to pull the outlaw end around which Judge Brown attempted.

I'd opine that the "end around" is that put up by the gummint lawyers.

[JaO]: 3) If DOJ sought good-faith review of this constitutional principle, as Dellinger suggests, it could actual cooperate with potential third-party plaintffs to seek a proper test case. Stipulations can be made, and privileges waived, when parties genuinely seek resolution of underlying merits issues.

Dellinger never recommended that his client waive all of its legal defenses. No competent attorney would recommend that the ACLU be allowed to conduct a fishing expedition to expose a top secret program to the enemy in a time of war.

Ummmm, allegedly illegal program. Something that's illegal is not "top secret". And it's not a "fishing expedition". The gummint admitted it did what was alleged.

[JaO]: 4) To this day Bush and Gonzales -- who are obviously conflicted -- refuse to take the honorable course of appointing a special counsel.

Here, at last, we arrive at a perfect example of the unitary executive theory. In a conflict with Congress over the division of powers, Mr. Bush is not required to appoint a special prosecutor to prosecute himself....

"[C]onflict with Congress over the division of powers"? Translation from Republican into English: "lllegal spying". And FWIW, it wasn't Congress that brought suit.

... Congress is perfectly competent to take action to protect its own interests. They can bring a case in court, withdraw funding for the TSP or impeach the President...

Or just pass a law saying that the preznit must follow certan procedures .... oh, waiddaminnit.

The fact is that a majority in Congress supports the TSP and always has.

ROFLMAO. My guess is that a majority of Congress also thinks gay sex is "icky". What that has to do with the price of tea in Sri Lanka, I dunno....

"Based on what has been disclosed to date, Justice never requested a warrant for TSP intelligence gathering until the FISC recently agreed to issue rotating blanket program wide warrants."

So Justice isn't required to seek a warrant, because none was required. Furthermore, based on your arguments, the fact that no warrant is required in this context is essentially self-evident due to the inherent authority of the President as C-in-C as set forth in the cases you continually cite. So the FISC, presumably aware that no warrant is required, nevertheless starts issuing them because.....why? I must've missed all those occasions where Courts "agree" to issue orderes that were never required in the first place...

And if no warrant is required, why would the Administration, regardless of agreement from the FISC (which is a dubious proposition at best as it implies that the decision was a foregone conclusion), seek one? You indicated before that if the admin seeks a warrant, it would essentially agree (tacitly at least) that Congress had the power to require a warrant for intelligence gathering. How would that change even if there was an agreement in place to issue a warrant?

While it may indeed be "vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny" that's exactly what the President and Congress can do under the Constitution in order to SAVE AMERICAN LIVES.

I searched the text of the Constitution for this "save American lives" exception and drew a blank. Could you at least steer me towards the correct article and section?

"I remember waiting; it wasn't long, but it felt like forever," Comey told U.S. News in an exclusive interview. "And I was thinking, 'What am I going to do? What if they get him to sign something? Do I intervene physically? What do I do?'"

. . . now some Democrats, including Sen. Charles Schumer of New York, say they will even back Comey for attorney general if Gonzales resigns. "The only thing worse than being vilified by the left," says Comey with a laugh, "is being idolized by the left."

So I read the Preamble s l o w l y of course, and I still find nothing that says that in times of emergency, war, etc. that actions taken by the executive are above judicial scrutiny/review. I don't know that I could read it more slowly, so I guess you'll just have to help me out as to where such a ridiculous notion comes from...

Could you also show me the rule of statutory interpretation that states the preamble would take precendence over the specific provisions of the document itself?

Bart: When the question is the constitutionality of the statute, that is the threshold issue.

Wow. That is one of the most creatively preposterous statements about criminal law I have ever seen.

So if my local U.S. attorney indicts me for violating something in the U.S. Criminal Code, he has a prima facie burden to prove to the court that the statute is affirmatively constitutional? Statutes are presumptively constitutional, and a party challenging that status has the burden to to prove otherwise.

Please. The comparison of a standard criminal offense which applies to all citizens with an attempt to criminalize the President's exercise of Article II power over foreign policy is more than a stretch.

Are you sure you read everything from "common defense" all the way to "the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make"?

Bart: "Based on what has been disclosed to date, Justice never requested a warrant for TSP intelligence gathering until the FISC recently agreed to issue rotating blanket program wide warrants."

So the FISC, presumably aware that no warrant is required, nevertheless starts issuing them because.....why?

Good question. I can only rely upon the FISC judges' testimony before the Senate where they gave personal opinions that they thought FISC supervision was important but that the President had the "necessary and proper" power to conduct this intelligence gathering without FISA warrants. Therefore, I would hazard a guess that the FISC stretched the FISA probable cause requirement to allow blanket warrants in exchange for gaining supervision over the TSP.

And if no warrant is required, why would the Administration, regardless of agreement from the FISC (which is a dubious proposition at best as it implies that the decision was a foregone conclusion), seek one?

This is much easier. Justice wants to be able to admit evidence gained by the TSP into criminal court. The WP reported that Justice had to certify that evidence underlying warrants they were seeking from the FISC were not gained through the warrantless TSP intelligence gathering. By agreeing to FISC blanket warrants, Justice gets to potentially admit all the evidence gathered by the TSP.

You indicated before that if the admin seeks a warrant, it would essentially agree (tacitly at least) that Congress had the power to require a warrant for intelligence gathering. How would that change even if there was an agreement in place to issue a warrant?

My response was limited to jao's far fetched plan for Justice to appeal the constitutionality of FISA. My point was that you cannot simultaneously ask the court for a warrant and also claim that the court has no power to grant the warrant.

In the case of the blanket warrants, the administration can simply say that it was seeking warrants for criminal prosecutions, which there is reason to believe was their motivation.

Bart: Please. The comparison of a standard criminal offense which applies to all citizens with an attempt to criminalize the President's exercise of Article II power over foreign policy is more than a stretch.

FISA, like its parent the Title III statute, does apply criminal sanctions to all persons: That includes you, me, the President, the FBI, the NSA, the Agriculture Department, General Electric and the Rotary Club.

If Bush wants to make the Nixonesque claim that nothing can be illegal if the president does it, he would have to make it in court.

How in the world can you state that they sought a warrant for criminal prosecutions? I must've missed all those criminal prosecutions against alleged terrorists. The facts is this admin CAN'T prosecute terrorists as criminals as that would undercut most of their basis for the programs--i.e. we're at war. They've studiously framed terrorism as something that is not a crime...

Bart: My point was that you cannot simultaneously ask the court for a warrant and also claim that the court has no power to grant the warrant.

That was not at all what I suggested, as Bart well understands from our many prior conversations. But true to form, he misstates my proposal.

The government could ask for a warrant based on information derived from prior warrantless surveillance. The FISC court could approve or disapprove that warrant. If it disapproved because, as the Post said the judges feared, the prior warrantless surveillance was illegally tainted, then the government could appeal that decision, setting up review of the warrantless program's legitimacy.

Even in the FISA courts, where the government has a huge home-court advantage, DOJ was afraid to try obtaining that precedent. A side effect of not seeking such warrants is that because DOJ feared the adverse precedent more than it cared about waging the war on terror, it probably had to pass up opportunities to surveill terror suspects.

Statutes are presumptively constitutional, and a party challenging that status has the burden to to prove otherwise.

This encapsulates the flaw at the heart of Bart's entire theory -- he is treating the FISA statute as presumptively unconstitutional until affirmatively found constitutional. This theory, if taken seriously, would allow the Administration to keep any statute it disliked presumptively unconstitutional indefinitely by refusing to challenge its constitutionality in court. That is madness.

Bart, I looked over the cases you presented last time as proof that Congress' authority over the military was limited to the UCMJ. These cases establish nothing of the sort. What they hold is that it is unconstitutional for Congress to extend the UCMJ to civilians, whether military dependents living on base or discharged former service members. The cases determine that Congress' Article I, Section 8, Clause 14 power to to regulate the armed forces does not extend to civilians, and that a court martial does not meet the criminal procedure requirements of of the 5th and 6th Amendments. Nowhere do these cases say that Congress may not subject the military to regulations beyond the UCMJ.

Since the NSA is part of the Defense Department, it seems reasonable to argue that Congress' power to the military extends to establishing NSA procedures. You prefer to say that Congress may establish an intelligence agency under the N&P clause to allow the President to exercise is powers. You say the N&P clause gives Congress the power to create institutions to allow the President to do his job. I would say the power to create implies the power to regulate. Odd, too, that Congress may not do what is necessary and proper to keep the President from violating people's rights. (That was why FISA was established, after all).

You are being played. The public op ed was a nasty piece of work and misdirection, then we get oh, I didn't mean that. I call bull you know what. Kmiec knew exactly what he was doing, and his step back here will be seen by maybe 1% of the people who saw the op ed, but it buys him back into oh, that nice Doug Kmiec. Nuts. He is playing you, don't accept delivery

The judiciary is powerless to punish, much less to prevent, clandestine misappropriations of executive power. The best we can hope for is Congressional censure, after the facts become known, via the impeachment power. In the current political context, to be sure, impeachment of Bush and Cheney, leading as it would to elevation of Nancy Pelosi, would smack of a political putsch. But impeachment of Gonzales should suffice to surface the issues and establish the precedent.

Please. The comparison of a standard criminal offense which applies to all citizens with an attempt to criminalize the President's exercise of Article II power over foreign policy is more than a stretch.

Bart: Please. The comparison of a standard criminal offense which applies to all citizens with an attempt to criminalize the President's exercise of Article II power over foreign policy is more than a stretch.

FISA, like its parent the Title III statute, does apply criminal sanctions to all persons: That includes you, me, the President, the FBI, the NSA, the Agriculture Department, General Electric and the Rotary Club.

Give it a rest. You, I and the Rotary Club cannot get warrants from the FISC and are not the subject of FISA. The only purpose of FISA was to create limits on the President's power to gather intelligence in the United States.

Give it a rest. You, I and the Rotary Club cannot get warrants from the FISC and are not the subject of FISA.

And that has what to do with the price of tea in Sri Lanka? Dubya wasn't getting warrants either.

50 USC &sect 1809:

"(a) Prohibited activitiesA person is guilty of an offense if he intentionally—(1) engages in electronic surveillance under color of law except as authorized by statute; or(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

"(b) DefenseIt is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction."

Bart, I looked over the cases you presented last time as proof that Congress' authority over the military was limited to the UCMJ.

I never posted that argument. Congress has a variety of powers over the military.

What I did post was that the clause granting Congress the power "To make rules for the government and regulation of the land and naval forces" simply grants the Congress the power to regulate the good order and discipline of individual members of the uniformed services with legislation like the UCMJ.

I further posted that the cases interpreting this clause all involves the UCMJ or other similar regulations. The cases which I provided you were just a sample.

There are no cases which I saw in the annotations to this clause which interpret "regulation" to mean directing military operations like intelligence gathering. I am pretty sure if there were any such cases, that the Professors here would have offered them a long time ago.

Kmiec is a snake. It's one of those famous banality of evil situations. George Bush is a lawless, lying, anti-democratic scumbag with obvious tyrannical tendencies.

But a smooth operating snake like Kmiec tries to apologize for him by describing his unconstitutional actions, as Lederman said, as nothing more than a gentleman's disagreement over a minor matter of semantics.

Congress has a variety of powers over the military. What I did post was that the clause granting Congress the power "To make rules for the government and regulation of the land and naval forces" simply grants the Congress the power to regulate the good order and discipline of individual members of the uniformed services with legislation like the UCMJ.

OK, once more for those of us who are slow on the uptake. What other military powers does Congress have.

There are no cases which I saw in the annotations to this clause which interpret "regulation" to mean directing military operations like intelligence gathering. I am pretty sure if there were any such cases, that the Professors here would have offered them a long time ago.

FISA does not "direct" intelligence gathering. It establishes procedures to ensure that when Congress creates a foreign intelligence surveillance agency for the President, he is actually using it to gather foreign intelligence and not misusing it for other purposes. Perhaps a better question would be to ask for cases establishing just what is an unconstitution "direction" of military operations. Do you have any cases on that?

Bart: you shouldn't rely on the annotations, you should read the cases. I did, at least the ones you cited, and I also found your argument that they indicate that Congress could not properly pass FISA under Article I, Section 8, clause 14 a stretch, to say the least. As another poster noted, these cases limit Congressional authority to apply the UCMJ to civilians; they do not suggest, as you state, the this clause is limited only to establishing internal disciplinary rules for members of the armed forces.

Also, why isn't FISA a valid exercise of express Congressional authority under the Commerce Clause? Especially given that the telcos are the ones whose facilities are used by such wiretapping, I would find it hard to believe that Congress doesn't have the authority to pass FISA under the Commerce Clause.

There are no cases which I saw in the annotations to this clause which interpret "regulation" to mean directing military operations like intelligence gathering.

No one has said they have the power to "direct" military operations (well, outside of little things liek declaring war), and the FISA law doesn't "direct" any such operations. It regulates such, much the same way as they might prescribe dress uniforms for certain circumstances wihthin the UCMJ. It says what can and cannot be done, and how such must be done if it is done. But it doesn't specify any target or say who specifically should do it.

You keep ignoring this, despite your foolhardy attempt to use a dictionary definition to claim that "directing" and "regulating" are one and the same -- they are not, or you'd have to admit that the entirety of the UCMJ (and even all of U.S. Code Title 10) is Congress "directing" and thus usurping the Commanderer-in-Chief's prerogatives. That would be ridiculous, but it's the same damn argument. But JaO and PMS_Chicago got the best of you in that "duel of definitions", but here you're back with the same old tripe that's been shot down hundreds of times before. Why won't you address such objections?

Bart has a highly entertaining theory that the Commerce Clause does not enable regulation of wiretapping in the first place. Nothing in his theory really distinguishes between foreign-intelligence wiretaps and any other wiretaps covered by Title III, which is what prevents all of us from wiretapping each other whenever we please. Bart argues that would not affect interstate or foreign commerce so long as the tappers didn't tell their victims about the eavesdropping.

(Both Title III and FISA were enacted in part pursuant to the Commerce Clause and the Necessary and Proper Clause. FISA actually is drafted as a special carve-out from Title III. Taken together, they criminalize all wiretapping in the United States by anyone, except for situations covered for the "exclusive means" of Title III or FISA warrants. A federal court actually has ruled that the Terrorist Surveillance Program violates both FISA and Title III.)

The federal government has regulated wiretapping under the Commerce Clause since the Federal Communications Act of 1934, and this authority was upheld by the Supreme Court in Weiss v. United States in 1939. The criminalization provisions of Title III, which mostly control today, were enacted in 1968.

But Bart's theory is that the Supreme Court, in a frenzy of post-Lopez revisionism, will roll back this precedent and strike down Congress' power to regulate covert wiretapping in the first place. (So presumably, we can begin tapping each other with abandon.) Also note that for good measure Bart advances a narrow reading of the N&P Clause -- a reading that the court explicitly considered and rejected in McCulloch v Maryland in 1819 when it established the doctrine of implied powers!

Obviously, the administration will make no such arguments at 1 First Street NE because Paul Clement does not do stand-up comedy. But no doubt Prof. Kmiec will embrace Bart's theory. Or not?

Here's a useful passage about Congress's authority to make rules for the government and regulation of the military:

In the words of Alexander Hamilton, the power to regulate the armed forces, like other powers related to the common defense, was given to Congress

"without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defence." The Federalist, No. 23, at 147 (emphasis omitted).

The later-added Bill of Rights limited this power to some degree, cf. Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion); Chappell v. Wallace, 462 U.S. 296, 300 (1983), but did not alter the allocation to Congress of the "primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military," Solorio, supra, at 447-448.

Under Clause 14, Congress, like Parliament, exercises a power of precedence over, not exclusion of, Executive authority. Cf. United States v. Eliason, 16 Pet. 291, 301 (1842) ("The power of the executive to establish rules and regulations for the government of the army, is undoubted"). This power is no less plenary than other Article I powers, Solorio, supra, at 441, and we discern no reasons why Congress should have less capacity to make measured and appropriate delegations of this power than of any other, see Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 220 -221 (1989) (Congress may delegate authority under the taxing power); cf. Lichter v. United States, 334 U.S. 742, 778 (1948) (general rule is that "[a] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes") (emphasis deleted). Indeed, it would be contrary to precedent and tradition for us to impose a special limitation on this particular Article I power, for we give Congress the highest deference in ordering military affairs. Rostker v. Goldberg, 453 U.S. 57, 64 -65 (1981). And it would be contrary to the respect owed the President as Commander in Chief to hold that he may not be given wide discretion and authority. We decline to import into Clause 14 a restrictive nondelegation principle that the Framers left out.

Bart has a highly entertaining theory that the Commerce Clause does not enable regulation of wiretapping in the first place.

My post speaks for itself. I have nothing to add to it, but I would advise that folks read the post rather than jao's selective spin on it. I break down the statutes and all the case law involved and pretty easily distinguish it.

I would note that jao does not even attempt to argue that classified surveillance of international enemy telecommunications somehow affects interstate commerce. It is a pretty silly concept once you think about it.

Bart DePalma writes: I would note that jao does not even attempt to argue that classified surveillance of international enemy telecommunications somehow affects interstate commerce. It is a pretty silly concept once you think about it.

Right. Because no one cares at all if the government is watching while they download porn.

...

...

Any contention that engaging in electronic surveillance under color of law has no effect on commerce is laughable. Privacy is a major concern in modern commerce, which the general public increasingly conducts electronically.

I read your post at Volokh Conpspiracy that JAO links and find it quite disturbing. Your argument appears to be that Article I give Congress certain delegated powers, narrowly defined. Article II, however, gives the President an extremely undefined "all executive power." Therefore can do anything at all the could be construed an "executive power," but Congress may constrain the President only if specifically authorized to do so. The N&P clause allows Congress to give the President instruments to exercise his power more effectively, but not regulations to ensure that he uses these instruments lawfully. How odd!

You constantly talk about freeing We, the People from the heavy hand of government, but seem to think that the heavy and oppressive hand of government is limited to Congressional statutes, while an unregulated executive of immense power is not heavy-handed or oppressive at all. Again, how odd!

Good point, Enlighted Layperson. Bart DePalma imports familiar states rights principles into separation of powers analysis. Perhaps we should call this new legal theory "dictator's rights."

(Of course, the "dicator's rights" theory fails because, whereas the states are sovereigns that reserved all powers not granted to the federal government under the Constitution, the President is, like Congress, a Constitutional creation endowed only with the powers granted to it.)

The N&P clause allows Congress to give the President instruments to exercise his power more effectively, but not regulations to ensure that he uses these instruments lawfully. How odd!

Think about the implications of your argument for a moment.

You appear to be saying that, if Congress uses its N&P power to enable the Executive (and presumably also the Judiciary) to exercise their plenary powers, then Congress should also have the power to regulate (ie limit) the powers of the other two branches.

For example, under your theory, if Congress can tell the President what he can do with the NSA because it created that organization pursuant to the N&P Clause, then it should also be able to tell the lower courts created through that power how to decide cases which come before them.

Such a theory renders the entire concept of separation of powers null and void and creates one preeminent branch of government - the Congress - and two completely subordinate branches which can only act at the pleasure of the Congress.

Bart, there's nothing odd in Enlightened Layperson's argument. As an ardent Federalist, you must be aware that the founding fathers did, indeed, envision Congress as the branch with the most extensive powers.

For example, from Federalist No. 48: The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.

They are quite correct that some Founding Fathers never envisioned nuclear weapons that could destroy all human life instantly. For instance, Alexander Hamilton, in Federalist Paper No. 70 argued for a Chief Executive confined to just commerce, banking, and monetary policy.

Bart: I would note that jao does not even attempt to argue that classified surveillance of international enemy telecommunications somehow affects interstate commerce.

There is nothing in Commerce Clause regulation that requires making subject-specific distinctions in the content of communications. The commerce interest Congress is protecting under Title III and FISA is a common understanding that all communications are generally private and interception is unlawful. But Congress, under its Necessary & Proper authority, also has weighed competing public interests and government functions -- including those of investigating criminals and gathering intelligence -- and established general rules with specific exceptions under which the government can eavesdrop subject to judicial oversight and review. (Foreign-intelligence intercepts are allowed under FISA; the government just has to make a showing of probable cause that the target is a foreign power or agent of same.)

If there is something special about intelligence, it has to do with Article II, which is another issue. But the claim that Congress has no Article I authority to regulate wiretapping in general is so far-fetched that even the administration "white paper" -- a 42-page press release that Kmiec professes to admire, but which DOJ is quite afraid to file as a real legal brief in court -- does not remotely make such a claim.

In all seriousness, none of us should be sidetracked for very long by Bart's spurious Commerce Clause theory. Despite his usual hijacking of this thread, it is not about Bart but about Prof. Kmiec.

But they are now allied as propagandists -- one in a respectable-looking op-ed, the other in trollish blog commentary -- with the common aim of giving political cover to the Bush administration. Neither really makes a serious legal argument. And neither wants the administration to make make one in a real court.

Bart, there's nothing odd in Enlightened Layperson's argument. As an ardent Federalist, you must be aware that the founding fathers did, indeed, envision Congress as the branch with the most extensive powers.

A reading of the powers enumerated in Article I in comparison to those granted the other branches in Articles II and III will tell you that.

What EL and others are arguing is that Congress may not only exercise the raft of enumerated powers granted it, but may also exercise an unwritten authority to assume the powers granted to the other branches.

When reading my last post, Bart, I suspect you chuckled to yourself and thought, “Why didn’t he use passage from Federalist No. 51 to make his point about Congressional predominance?” Here’s that quote:

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?

Bart DePalma writes: What EL and others are arguing is that Congress may not only exercise the raft of enumerated powers granted it, but may also exercise an unwritten authority to assume the powers granted to the other branches.

Quite the contray. Enlightened Layperson and others (including myself) argue that Congress may exercise its express powers to regulate interstate and foreign commerce (as well as its express power to make rules to govern and regulate the military) to limit electronic surveillance under color of law.

The person asserting unwritten authority in this discussion is YOU. You argue that the President has unwritten authority to engage in surveillance that trumps the powers expressly granted to Congress.

Last time I checked, QuiteAlarmed, the words "executive Power shall be vested in a President" were in fact WRITTEN in the Constitution. Maybe you are thinking about that movie with disappearing ink on the reverse of the Declaration of Independence? The sequal is planned for later this year.

Bart: I would note that jao does not even attempt to argue that classified surveillance of international enemy telecommunications somehow affects interstate commerce.

The commerce interest Congress is protecting under Title III and FISA is a common understanding that all communications are generally private and interception is unlawful.

Since when has "privacy" become a "commerce interest" enforceable under the Commerce Clause? Do you have any case law to back up this contention or is this another privacy penumbra?

(Foreign-intelligence intercepts are allowed under FISA; the government just has to make a showing of probable cause that the target is a foreign power or agent of same.)

The purpose of this intelligence gathering is to identify al Qaeda cells in this country. You cannot have probable cause about the intent of the target before you even identify him.

If there is something special about intelligence, it has to do with Article II, which is another issue. But the claim that Congress has no Article I authority to regulate wiretapping in general is so far-fetched...

Hold your horses. I never made such a claim.

As support for Congress' power to enact FISA pursuant to the Commerce Clause, Professor Lederman offered a FDR era statute which barred the wiretapping and the public disclosure of the results of that wiretap, as well as two cases which upheld the statute as an exercise of Congress' Commerce Clause power.

The case law provided no analysis of the basis for applying the CC to this statute. However, one case did reference an earlier decision which held: "As it is competent for Congress to legislate to these ends, unquestionably it may seek their attainment by requiring that the agencies of interstate commerce shall not be used in such manner as to cripple, retard, or destroy it. "

I argued that the only element of the FDR era statute which could even theoretically cripple, retard or destroy commerce is making public the results of wiretaps, which would discourage the targets of the wiretap from using the tapped telephone line. This element is not present in FISA nor in classified intelligence gathering, which by its nature does not make its findings public.

jao, I will extend a professional courtesy to you and assume that this was an honest misunderstanding on your part and not an arne or robert style intentional misrepresentation of my posts. However, as an attorney, you should know better.

Charles writes: Last time I checked, QuiteAlarmed, the words "executive Power shall be vested in a President" were in fact WRITTEN in the Constitution.

Indeed, those words are written into the Constitution. That's why the President has the express power to execute the laws duly enacted by Congress.

I defy you though to show me where the word "surveillance" appears in Article II. Any inherent power that the President may have to conduct surveillance is implied ("unwritten" to use Bart's turn of phrase.)

The word "surveillance" is in NEITHER Article I nor II -- consider it in the penumbra of "Commander in Chief" if that helps -- unless you are going to claim that no one in the U.S. government can legally spy on the enemy during wartime?!

Bart DePalma writes: Since when has "privacy" become a "commerce interest" enforceable under the Commerce Clause?

You are right. Of course, privacy has nothing to do with commerce. On that note, I hope you won't mind posting your credit card numbers, social security numbers and bank account information on this blog. Thank you.

Bart: I argued that the only element of the FDR era statute which could even theoretically cripple, retard or destroy commerce is making public the results of wiretaps, which would discourage the targets of the wiretap from using the tapped telephone line.

So Congress has no Commerce Clause authority to prevent me from wiretapping you, or the government from wiretapping me, in a non-intelligence context so long as the wiretapper does not publish the contents publicly?

And you argue the general knowledge that such covert wiretapping could be going on -- for those of us who are neither criminals nor foreign agents -- would not affect the public's use of communications systems?

Charles writes: The word "surveillance" is in NEITHER Article I nor II --

Correct. That's my point. The President has no express power to conduct surveillance. Congress, however, has an express power to regulate interstate and foreign commerce. Despite Bart's heroic efforts at an arguable (but not reasonable) position to the contrary, electronic transmissions are clearly a channel of commerce in our modern age.

Charles writes: consider it in the penumbra of "Commander in Chief" if that helps --

WOO HOO! PENUMBRAS!

I actually suggested this in an earlier post (5:29), but didn't expect to get a conservative to bite.

I think I'll just bask in it instead of commenting.

Charles writes: ...unless you are going to claim that no one in the U.S. government can legally spy on the enemy during wartime?!

I agree that during wartime the President, as Commander in Chief, has the implicit authority to order the military to conduct surveillance. As Justice Kennedy explained in Loving v. United States, 517 U.S. 748 (1996), however, Congress's power to make rules governing and regulating the military takes precedence over (but doesn't exclude) the President's authority.

Bart, in his post on Volokh, counts the authority to surveil not merely as a penumbra of the President's powers as commander and chief, but as a part of the President exercising "all executive power."

The President's powers a C-in-C are subject to Congressional authority to regulate the military. Bart is postulating some vague, undefined "all executive power" that the President holds beyond any authority of Congress to regulate. He is a strict constructionist of Congressional power and the loosest of loose constructionists with regard to the executive. It is, as Quite Alarmed says, a theory of dictator's rights.

While it may indeed be "vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny" that's exactly what the President and Congress can do under the Constitution in order to SAVE AMERICAN LIVES.

# posted by Charles : 6:03 PM

Where in the Constitution does it say that actions taken by Congress or the President in order to save AMERICAN LIVES are beyond Judicial Review.

Because this seems to be the core schism. Almost no one on this blog, except for you and Bart, believe this to be true.

I agree that it would be unconstitutional for Congress to "direct" foreign intelligence surveillance, but not with your definition of "direct." For Congress to "direct" foreign intelligence gathering, it would have to tell the President that he may wiretap, say, Russia but not China, or that he may wiretap international Communists but not the IRA. It might even imply telling the President to wiretap or not wiretap certain individuals. FISA does nothing of the kind.

You say that only wiretaps that are disclosed affect interstate (or international) commerce and that foreign intelligence wiretaps do not because they are by definition secret. This ignores that fact that what is done most secretly has the greatest potential for abuse.

Congress created the NSA to give the President power to engage in secret foreign intelligence surveillance. The Presidents, and that is Presidents in the plural, not just Nixon, but all of them, took advantage of the secrecy to misuse the NSA for other purposes. So Congress enacted FISA, not to "direct" the gathering of foreign intelligence, but to ensure that when the President used the NSA, he was actually using it to gather foreign intelligence and not for something else.

Do you have any cases to establish when Congress is overstepping its bounds and unconstitutionally "directing" (as opposed to merely regulating) the military?

So Congress has no Commerce Clause authority to prevent me from wiretapping you, or the government from wiretapping me, in a non-intelligence context so long as the wiretapper does not publish the contents publicly?

Unless you can show me that it causes some significant effect on commerce, I would agree with that statement.

And you argue the general knowledge that such covert wiretapping could be going on -- for those of us who are neither criminals nor foreign agents -- would not affect the public's use of communications systems?

Bart of course gives an answer lacking in all context and veracity. Does this sound like a poorly reasoned ruling?

Second, the court ruled that the plaintiffs have standing to challenge the legality of the NSA program even though they cannot prove they have been eavesdropped on, because they have suffered actual harm merely from knowing that the Government is eavesdropping. They all allege that they have extensive communications with the Middle East by telephone and fear that the administration is listening in without a warrant. Some are attorneys who fear the administration is eavesdropping on their conversations with their clients and witnesses, and they allege that these clients and witnesses have ceased communicating with them openly as a result.

Thus, the court held that these plaintiffs are suffering actual harm in their ability to carry out their professional duties as a result of the administration's warrantless eavesdropping program. That actual harm confers on them standing to challenge the legality of the program. The court also emphasized, in an excellent section I will quote shortly, that it is vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny. - Glenn Greenwald

Also, Garth, I never said the President should be above the law -- Bush cannot be indicted for any crime though -- he has to be impeached first. Is that "above the law" to you?

I wish I had more time to stay and play, but I have to go for today. I did look this up re: Enlightened Layerson's claim that Congress created the NSA:

"The origins of the National Security Agency can be traced to the May 20, 1949 creation of the Armed Forces Security Agency (AFSA). This organization was originally established within the Department of Defense under the command of the Joint Chiefs of Staff. The AFSA was to be responsible for directing the communications and electronic intelligence activities of the military intelligence units—the Army Security Agency, the Naval Security Group, and the Air Force Security Service. However, the agency had little power and lacked a centralized coordination mechanism. The creation of NSA resulted from a December 10, 1951, memo sent by CIA Director Walter Bedell Smith to James B. Lay, Executive Secretary of the National Security Council. The memo observed that "control over, and coordination of, the collection and processing of Communications Intelligence had proved ineffective" and recommended a survey of communications intelligence activities. The proposal was approved on December 13, 1951, and the study authorized on December 28, 1951. The report was completed by June 13, 1952. Generally known as the "Brownell Committee Report," after committee chairman Herbert Brownell, it surveyed the history of U.S. communications intelligence activities and suggested the need for a much greater degree of coordination and direction at the national level. As the change in the security agency's name indicated, the role of the NSA was extended beyond the armed forces.

The creation of the NSA was authorized in a letter written by President Harry S. Truman in June of 1952. The agency was formally established through a revision of National Security Council Intelligence Directive (NSCID) 9 on October 24, 1952, and officially came into existence on November 4, 1952. President Truman's letter was itself classified and remained unknown to the public for more than a generation."

While it may indeed be "vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny" that's exactly what the President and Congress can do under the Constitution in order to SAVE AMERICAN LIVES.

Hilarious coming from you, the world champion of assuming your own conclusion!

In this case you postulated out of thin air: "I argued that the only element of the FDR era statute which could even theoretically cripple, retard or destroy commerce is making public the results of wiretaps, which would discourage the targets of the wiretap from using the tapped telephone line."

You "argued" no such thing. You just made a flat conclusory statement. Since it is you who proposes to overturn 70 years of Commerce Clause precedent, I rather think you have a more substantial burden.

If the situation ever were litigated, I would be glad to offer an affidavit attesting that the knowledge that anyone could wiretap me in secret, even though I am sure I am neither a criminal nor a foreign agent, would chill my use of interstate communications. I am quite sure that millions of other innocent Americans would be willing to do the same.

Meanwhile, I see that you concede my main observation, which is that your Commerce Clause theory is not limited to intelligence-gathering at all, but to any wiretaps where the content is not made public. So Title III as it stands would be struck down along with FISA. We could all begin covertly wiretapping each other.

DOJ won't even touch your Commerce Clause "argument" out of court, let alone inside. (Not to mention Prof. Kmiec, your new co-apologist here in the Court of Public Opinion.)

Too bad. I would pay big dollars to watch Paul Clement argue your theory in the Supreme Court, and try to get through his 30 minutes. I would even smuggle in popcorn.

Spying is a universally recognized executive function of foreign policy and military operations. No one disputes this.

Actually, I would. Many foreign countries use espionage not only for "classic" information gatherint (diplomatic, military) but also for commerical information to aid national companies. Such espionage, conducted by national intelligence agencies, would definitely fall under international commerce, and thus Article I.

And, since the terrorist attacks are inarguably disruptive to our economy, they can, without refute, be considered to affect our commerce, both domestically and internationally. Regulating the means of managing and stopping such risk falls squarely under Article I powers. Should the intelligence gathering be concerned with attacks against our troops and non-commercial assets, then their conduct should be monitored and directed by the executive under Article II.

Clearly to argue otherwise would be to place control of commerce under the wrong branch of the Federal Government.

You have stated, (if not in exact quote but at least in the sum of your arguments), that members of Congress who attempt to defy the decisions of the Unitary Executive with regards to the GWOT, funding troops, and proposing withdrawal timelines (or combinations of the above), are providing aid and comfort to the enemy.

You have also stated that the Unitary Executive surveillance abilities can extend to foreign enemies and their domestic supporters. As a sop, you stated that such surveillance should not be directed at private citizens or against partisan opponents.

However, if your partisan opponents are opposing the policies of the Unitary Executive, following your logic of aid to the enemy, these same opponents could then be subject to Unitary Executive surveillance since they are now domestic supporters of the enemy.

So we are safe from surveillance so long as we don't speak out against Unitary Executive policies. Is that why you act as an apologist so often?

Bart De Palma writes: Spying is a universally recognized executive function of foreign policy and military operations. No one disputes this.

The executive function is to execute the laws duly enacted by Congress. It is bounded by the authority granted by Congress.

You have a better argument for asserting that spying by the military is implicit to the President’s authority as Commander-in-Chief. I agree with that argument. Congress, however, has express authority to make rules governing and regulating how the military spies, as it has chosen to do in FISA, and this Congressional authority is preeminent over the President’s authority. Loving v. United States, 517 U.S. 748 (1996)

Sovereign monarchs may have an inherent power to spy on their subjects, but the President of the United States is decidedly not a monarch, only the Executive and the Commander-in-Chief of the military.

Bart DePalma writes: On the other hand, it takes a wild and nearly hallucinogenic leap to conclude that spying on agents for foreign groups is a subset of commerce, which is the trade of goods and services.

Now we see the problem: Bart has been experimenting with hallucinogens while reading our responses. Put down the drugs, Bart. You don’t need them to understand this.

Congress has express authority to regulate commerce. Electronic transmissions are a modern channel of commerce. Spying by intercepting electronic transmissions uses, and affects, this channel of commerce. Therefore, Congress has express authority to regulate spying done by intercepting electronic transmissions. Congress has done so with FISA.

Arguing that Congress lacks this power because spying is not commerce is like arguing that Congress could not prohibit joyriding on interstate highways because joyriding, no matter how many commercial motor vehicles are run off the road, is not itself commerce. Such arguments are patently specious.

I see you are still having a problem actually proving your contention that the existence of intelligence gathering against agents of foreign groups has any effect whatsoever on interstate commerce.

Here is a good test case.

The TSP was disclosed nearly two years ago. Show me where telecommunications were reduced to any measurable degree during that period of time because of pervasive fear that the evil Bush Administration was spying on innocent Americans.

Indeed, show me any evidence that the ACLU plaintiffs who claimed to fear being spied upon reduced their telecommunications to any extent.

Of course it is. The argument was silly from the outset. On sober reflection, we all know that your expansive interpretation of executive power was flatly rejected by the United States Supreme Court in Youngstown. That's the end of serious debate. We continue the discussion only for our entertainment, but when we begin at silly you ought not be surprised that we quickly move way past it.

Not quite the same question, since the ACLU case does not involve the Commerce Clause question you raise here. But there is sworn evidence is the case to support the plaintiffs' standing claim. It shows that they (lawyers, journalists, etc.) were obliged to use more expensive and alternate means to conduct their private business, or could not conduct some business at all.

I would note that jao does not even attempt to argue that classified surveillance of international enemy telecommunications somehow affects interstate commerce. It is a pretty silly concept once you think about it.

Only problem here is that this is not what 50 USC § 1809 makes a criminal offence. You can figure that out if you read the parts of this section that I quoted above ... assuming for present purposes you actually aren't brain-dead and have the reading comprehension of a sixth grader.....

For example, under your theory, if Congress can tell the President what he can do with the NSA because it created that organization pursuant to the N&P Clause, then it should also be able to tell the lower courts created through that power how to decide cases which come before them.

What? How?!?!? By passing laws that the courts have to enforce? I'm shocked, shocked, I tellya.....

Then there's that claim about Brown II (see link above), the miscite from a Watergate minority report, your inaccuracies WRT SJ, and the repeated claim that a majority "held" that the N.Y. Times could be prsecuted post-conviction in the Pentagon Papers case.... I'm going to have to start puttting together an index to keep track of it all.

Yes, my argument was silly, but no more absurd than some of your claims of Unitary Executive Privelege (see my second post).

The original post here was about faithfully executing the law, not contorting interpretations to be able to do what you want. The greatest weakness in your arguments is treating terrorism as a global, existential threat. It is not. The powers claimed under the fear of that minimal threat (you are much more likely to be killed by a drunk driver) far exceed any necessary to stop or further minimize the threat of the terrorists (of any stripe).

That is why the oath is: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." You keep saying that his job is to protect the lives of Americans. No; it is to protect the nation, and its core is the Constitution and the ideals represented therein. The President is elected to faithfully execute the laws, and not faithlessly try to work around them.

P.S. And even under your construction, more Americans have died from terrorist attacks and their fallout under the aegis of this administration than under the previous one (given a reasonable transition time). Your favorite Unitary Executive was so certain that he had accomplished the transition into office that he took a one month vacation in August 2001--everything from the start of that vacation forward falls under his watch under any reasonable definition of responsibility.

The plaintiffs affidavits claim without any corroborating evidence that their foreign terrorist clients have discontinued telecommunications with the US. Even if true, do you really contend that foreign terrorist calls into the US are commerce which can be regulated and protected from interception by Congress under the Commerce Clause?

As an aside, if true, these claims that terrorists have stopped their communications into the US in response to the NYT informing the enemy of the existence of the TSP is a pretty damning indictment of the NYT.

Not quite the same question, since the ACLU case does not involve the Commerce Clause question you raise here.

None of the complaints of which I am aware advance this theory of yours.

Please reconcile your views on inherent powers of the Executive--i.e. the ability to surveil without any specific grant of authority in the Constitution--with the seemingly inapposite proposition that Congress cannot regulate intelligence gathering because there is no textual support for such authority in Art. I.

How are these positions not mutually exclusive?

How can you be a textualist vis-a-vis Congress and maintain intellectual consistency by discussing inherent authority of the executive?

Foreign intelligence collection is not among Congress’s powers enumerated in Article Iof the Constitution, nor is it expressly mentioned in Article II as a responsibility of thePresident. Yet it is difficult to imagine that the Framers intended to reserve foreignintelligence collection to the states or to deny the authority to the federal governmentaltogether. It is more likely that the power to collect intelligence resides somewhere within the domain of foreign affairs and war powers, both of which areas are inhabited to somedegree by the President together with the Congress. - brief excerpt from an excellent piece I found published by the Congressional Research Service.

Please reconcile your views on inherent powers of the Executive--i.e. the ability to surveil without any specific grant of authority in the Constitution--with the seemingly inapposite proposition that Congress cannot regulate intelligence gathering because there is no textual support for such authority in Art. I.

So Congress has no Commerce Clause authority to prevent me from wiretapping you, or the government from wiretapping me, in a non-intelligence context so long as the wiretapper does not publish the contents publicly?

And you argue the general knowledge that such covert wiretapping could be going on -- for those of us who are neither criminals nor foreign agents -- would not affect the public's use of communications systems?

Unless you can show me that it causes some significant effect on commerce, I would agree with that statement.

Remarkable. A little later, Bart seems to regret he said that, so he pulls this out of his hat:

I see you are still having a problem actually proving your contention that the existence of intelligence gathering against agents of foreign groups has any effect whatsoever on interstate commerce.

Hey Bart: JaO's contention was not with regard to "the existence of intelligence gathering against agents of foreign groups." It was with regard to the idea that we could all wiretap each other. You suggested that such a thing would not have "significant effect on commerce." You seem to be sorry you said that, so now you're pretending you never did. Good old Bart.

More classic Bart: "Have you seen it reported anywhere that the NSA is spying on Airbus or some other foreign business?"

As usual, you've packed this thread with all sorts of unintentional humor. But in this remark you've set a new standard for yourself.

Here's the English translation for what you said: "We all know that NSA does nothing secret. All their activities are fully described in the press. So if we haven't read a press report announcing that they do X, this amounts to proof that they don't do X."

Lots of things are easier in a dictatorship, including maintaining national security. Bush hinted at this when he said "if this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator." Freedom isn't free. Committing to democracy inevitably means accepting a certain degree of danger that could be eliminated if one was willing to trust a king to snoop on us and make all our decisions for us.

Bushists tend to be cowardly authoritarians who don't think freedom is worth the extra risk that it inevitably requires. I think they'd be happier living in a country that doesn't value freedom. Singapore, maybe. There's no way to avoid this problem, short of eliminating war and/or eliminating democracy.

Some colonialists were very upset when our Founders told King George to get lost. The philosophical descendants of those royalists are obviously alive and well.

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

Hmm, so Congress makes the rules (laws) that the rest of the government uses to execute (faithfully) those same rules. Obviously, you agree with this, as long ago you argued to me that the Congress can delegate its rulemaking powers to the various departments in laws. But execute laws...where have I heard that before...oh, yes, Article II, Section 3 "he shall take care that the laws be faithfully executed."

Per the Constitution, Congress makes the rules, the President follows them. If he doesn't agree, he can attempt to veto them. Many posters here also bring up the option of contesting the laws via the courts. I don't see anywhere where he can just ignore them.

Of course, if he doesn't agree with the laws as passed and established, he could just resign in protest....

Still no response from "Bart" to the quite on-point and quite devastating post of mine that 50 USC § 1809 (which, just to be clear about it, is the law in question WRT the criminality of Dubya's snooping) doens't prohibit just some small subset of snooping that "Bart" chooses to put up as a "straw man" here. It flatly criminalises all such snooping, "under color of law" and just provides an affirmative defence to those that did so pursuant "to a search warrant or court order of a court of competent jurisdiction."

Nothing about international communications. Nothing about "enemys". Nothing about "commercial communications only". All.

The take-home point is that the law prohibits snoops, and only makes exceptions for certain authorised snoops. The criminality is inherent in the snooping of any kind, as long as no affirmative defence exists. Don't let him continue to shovel this "straw man" sh*te about the commerce clause not applying; it apples to commercial and non-commercial communications.

Here's the Bushist concept of separation of powers, in a nutshell: the people elected me, so therefore I can do whatever I want. And if congress doesn't like it, they can impeach me. So all is right with the world. Why are you helping the terrorists?

Your 3:29 post further underscores your inconsistency. You are saying that spying/intelligence gathering is inherent to the position as C-in-C. All fine and good. But you cannot then pretend to be a textualist by stating that Art. I makes no reference to intelligence gathering, therefore Congress cannot regulate it in any way. These are mutually exclusive positions. So again, how is it the President has inherent authority but Congress can only operate on the specific text of the Constitution?

If you actually read JAO's link at 10:02 AM you will see that Bart's theory of the President's authority to wiretap goes even beyond a broad reading of his powers as C-in-C.

[T]he President has two sources of authority to conduct intelligence gathering - as the sole source of executive authority and the subcategory of executive power as CiC over the military.

The President uses his executive power over all departments of the executive, including both the civilian and military intelligence agencies.

However, the President uses his CiC authority only over the military intelligence agencies like the DIA.

This appears to create beyond the powers the President is expressly given in the Constitution, the extremely nebulous category of "executive authority," a broad set of undefined "executive" powers all beyond the authority of Congress. A strange sort of textualism indeed!

However, the President used his authority CiC only military intelligence agencies such as it.

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